About Mediation and Arbitration

The Utah Legislature created the Office of the Property Rights Ombudsman to assist Utah citizens whose property rights have been affected, and to help resolve takings disputes without the need to pursue costly and stressful litigation. Mediation and arbitration are means to resolve disputes without going to court.

When the OPRO staff attorneys act as mediator or arbitrator, there is no fee for the mediation and arbitration services provided by our office.

Under Utah law, the OPRO is able to mediate and arbitrate disputes involving eminent domain, relocation, and takings. (See § 13-43-204 of the Utah Code .) Below are brief descriptions of these areas of law.

1. Eminent domain (or condemnation) occurs when an agency acquires land for a public purpose.
2. Relocation is related to eminent domain and arises when a home or business must be relocated. Under the Utah Relocation Assistance Act , relocation assistance may be available to eligible persons who have been displaced.
3. A Taking occurs when private property is taken or substantially restricted by the government or used for a public purpose so that compensation is due to the property owner.

Determining whether your specific situation falls into one of these categories will depend on the specific facts of your matter. Please call the OPRO to discuss your particular situation.

Mediation is a negotiation conducted or facilitated by a neutral third party who works with the parties to arrive at a mutually agreeable settlement.

The format of mediation depends on the circumstances, and the comfort and wishes of the parties involved. The Ombudsman will discuss mediation with the parties in advance and consider the objectives of both sides in planning the mediation.

Typically the property owner, the condemning party and the Ombudsman begin by discussing outstanding issues. After the initial discussion, the parties may separate to consider settlement offers privately. The mediator facilitates discussion between the parties and helps them understand their positions. The mediator may also offer suggestions for settlement and help draft a final agreement.

Each party remains in control of the outcome, and no one is forced or pressured to accept any settlement.

Mediation may take place at any suitable location. The OPRO’s attorneys are able to travel throughout Utah in order to reduce the burden and expense to the parties.

A property owner may request mediation to resolve a property rights dispute with a condemning agency. If mediation is appropriate, the condemning agency is obligated to participate.

The mediation process is initiated by filling out the Request Mediation Form, which can be found here , and sending the completed form to the OPRO.

When a Request for Mediation is received, the OPRO sends a copy to the condemning agency. After the agency is notified, the OPRO will consult with the parties to determine the best way to proceed.

Under Utah law, if the OPRO determines that the matter is not appropriate for mediation, it may decline to mediate the matter. If the OPRO determines the request is appropriate, it will proceed with the mediation.

The OPRO may request that a court temporarily stop a case while mediation is conducted, but the decision of whether or not to stop the case belongs to the judge. However, requesting a stay is rarely necessary, because the parties are usually able to agree on a mediation schedule.

Utah law does not authorize the OPRO to request a stay of a court proceeding on whether a condemning agency may be given immediate occupancy of a property.

If mediation is unsuccessful, negotiations may continue, or the matter could be resolved through arbitration. The parties may also contest the issue in court and let a judge decide.

Arbitration is a more formal than mediation (but still much less formal and time consuming than litigation). The primary difference between mediation and arbitration is that the arbitrator determines the final resolution, while in mediation the parties reach a settlement themselves.

A neutral third party serves as the arbitrator and conducts the proceeding. The parties present evidence which supports their respective positions. This evidence may include written documents and testimony from witnesses. The arbitrator issues a written decision based on the evidence and the law.

If the participants’ schedules allow it, the OPRO usually can schedule arbitration quickly. A typical arbitration hearing can be completed in less than one day.

An arbitration award may be appealed to district court as provided by law. If the decision is appealed, the court will rehear the evidence and come to an independent decision. If the award is not appealed, the decision becomes binding and enforceable by either party.

If desired, the parties may agree in advance that the arbitration award will be final (“binding arbitration”). Otherwise, the arbitration award may be appealed.

It is not required for a party to have attorney representation at arbitration or mediation, but any party may be represented if desired.

In most cases, proving compensation requires a property appraisal. The OPRO is authorized to order an appraisal at a property owner’s request if one is reasonably necessary to help resolve the dispute. The condemning party will pay for this appraisal. The OPRO can also help a party understand the law, if requested.

Property owners may receive mediation or arbitration services free of charge from the OPRO. As part of the mediation process, they have the right to request an additional appraisal. However, the decision whether to provide that appraisal is made by the mediator, after a determination of whether one will reasonably help resolve the dispute.

Please call the OPRO with any questions. The attorneys in the Ombudsman’s Office are engaged in this area of law every day, and condemning agencies may draw upon that expertise. Moreover, the OPRO has a statutory duty to assist and educate condemning agencies as well as property owners. You may request training, discuss a specific question or simply ask about how the process works by visiting our “Request Training” page.